The Powers of the Senate

To the People of the State of New York:

It is a just and not a new
observation, that enemies to particular persons, and opponents to
particular measures, seldom confine their censures to such things
only in either as are worthy of blame. Unless on this principle,
it is difficult to explain the motives of their conduct, who
condemn the proposed Constitution in the aggregate, and treat with
severity some of the most unexceptionable articles in it. ¶

The second section
gives power to the President, by
and with the advice and consent of the senate, to make treaties,
provided two thirds of the senators present concur.¶

The power of making treaties is an important one,
especially as it relates to war, peace, and commerce; and it
should not be delegated but in such a mode, and with such
precautions, as will afford the highest security that it will be
exercised by men the best qualified for the purpose, and in the
manner most conducive to the public good. The convention appears
to have been attentive to both these points: they have directed
the President to be chosen by select bodies of electors, to be
deputed by the people for that express purpose; and they have
committed the appointment of senators to the State legislatures.
This mode has, in such cases, vastly the advantage of elections by
the people in their collective capacity, where the activity of
party zeal, taking the advantage of the supineness, the ignorance,
and the hopes and fears of the unwary and interested, often places
men in office by the votes of a small proportion of the electors.
¶

As the select assemblies for choosing the President, as
well as the State legislatures who appoint the senators, will in
general be composed of the most enlightened and respectable
citizens, there is reason to presume that their attention and
their votes will be directed to those men only who have become the
most distinguished by their abilities and virtue, and in whom the
people perceive just grounds for confidence. The Constitution
manifests very particular attention to this object. By excluding
men under thirty-five from the first office, and those under
thirty from the second, it confines the electors to men of whom
the people have had time to form a judgment, and with respect to
whom they will not be liable to be deceived by those brilliant
appearances of genius and patriotism, which, like transient
meteors, sometimes mislead as well as dazzle. If the observation
be well founded, that wise kings will always be served by able
ministers, it is fair to argue, that as an assembly of select
electors possess, in a greater degree than kings, the means of
extensive and accurate information relative to men and characters,
so will their appointments bear at least equal marks of discretion
and discernment. The inference which naturally results from these
considerations is this, that the President and senators so chosen
will always be of the number of those who best understand our
national interests, whether considered in relation to the several
States or to foreign nations, who are best able to promote those
interests, and whose reputation for integrity inspires and merits
confidence. With such men the power of making treaties may be
safely lodged. ¶

Although the absolute necessity of system, in the
conduct of any business, is universally known and acknowledged,
yet the high importance of it in national affairs has not yet
become sufficiently impressed on the public mind. They who wish to
commit the power under consideration to a popular assembly,
composed of members constantly coming and going in quick
succession, seem not to recollect that such a body must
necessarily be inadequate to the attainment of those great
objects, which require to be steadily contemplated in all their
relations and circumstances, and which can only be approached and
achieved by measures which not only talents, but also exact
information, and often much time, are necessary to concert and to
execute. It was wise, therefore, in the convention to provide, not
only that the power of making treaties should be committed to able
and honest men, but also that they should continue in place a
sufficient time to become perfectly acquainted with our national
concerns, and to form and introduce a a system for the management
of them. The duration prescribed is such as will give them an
opportunity of greatly extending their political information, and
of rendering their accumulating experience more and more
beneficial to their country. Nor has the convention discovered
less prudence in providing for the frequent elections of senators
in such a way as to obviate the inconvenience of periodically
transferring those great affairs entirely to new men; for by
leaving a considerable residue of the old ones in place,
uniformity and order, as well as a constant succession of official
information will be preserved. ¶

There are a few who will not admit that the affairs of
trade and navigation should be regulated by a system cautiously
formed and steadily pursued; and that both our treaties and our
laws should correspond with and be made to promote it. It is of
much consequence that this correspondence and conformity be
carefully maintained; and they who assent to the truth of this
position will see and confess that it is well provided for by
making concurrence of the Senate necessary both to treaties and to
laws. ¶

It seldom happens in the negotiation of treaties, of
whatever nature, but that perfect secrecy and immediate
despatch are sometimes requisite. These are cases where
the most useful intelligence may be obtained, if the persons
possessing it can be relieved from apprehensions of discovery.
Those apprehensions will operate on those persons whether they are
actuated by mercenary or friendly motives; and there doubtless are
many of both descriptions, who would rely on the secrecy of the
President, but who would not confide in that of the Senate, and
still less in that of a large popular Assembly. The convention
have done well, therefore, in so disposing of the power of making
treaties, that although the President must, in forming them, act
by the advice and consent of the Senate, yet he will be able to
manage the business of intelligence in such a manner as prudence
may suggest. ¶

They who have turned their attention to the affairs of
men, must have perceived that there are tides in them; tides very
irregular in their duration, strength, and direction, and seldom
found to run twice exactly in the same manner or measure. To
discern and to profit by these tides in national affairs is the
business of those who preside over them; and they who have had
much experience on this head inform us, that there frequently are
occasions when days, nay, even when hours, are precious. The loss
of a battle, the death of a prince, the removal of a minister, or
other circumstances intervening to change the present posture and
aspect of affairs, may turn the most favorable tide into a course
opposite to our wishes. As in the field, so in the cabinet, there
are moments to be seized as they pass, and they who preside in
either should be left in capacity to improve them. So often and so
essentially have we heretofore suffered from the want of secrecy
and despatch, that the Constitution would have been inexcusably
defective, if no attention had been paid to those objects. Those
matters which in negotiations usually require the most secrecy and
the most despatch, are those preparatory and auxiliary measures
which are not otherwise important in a national view, than as they
tend to facilitate the attainment of the objects of the
negotiation. For these, the President will find no difficulty to
provide; and should any circumstance occur which requires the
advice and consent of the Senate, he may at any time convene them.
Thus we see that the Constitution provides that our negotiations
for treaties shall have every advantage which can be derived from
talents, information, integrity, and deliberate investigations, on
the one hand, and from secrecy and despatch on the other. ¶

But to this plan, as to most others that have ever
appeared, objections are contrived and urged. ¶

Some are displeased with it, not on account of any
errors or defects in it, but because, as the treaties, when made,
are to have the force of laws, they should be made only by men
invested with legislative authority. These gentlemen seem not to
consider that the judgments of our courts, and the commissions
constitutionally given by our governor, are as valid and as
binding on all persons whom they concern, as the laws passed by
our legislature. All constitutional acts of power, whether in the
executive or in the judicial department, have as much legal
validity and obligation as if they proceeded from the legislature;
and therefore, whatever name be given to the power of making
treaties, or however obligatory they may be when made, certain it
is, that the people may, with much propriety, commit the power to
a distinct body from the legislature, the executive, or the
judicial. It surely does not follow, that because they have given
the power of making laws to the legislature, that therefore they
should likewise give them the power to do every other act of
sovereignty by which the citizens are to be bound and affected. ¶

Others, though content that treaties should be made in
the mode proposed, are averse to their being the supreme
laws of the land. They insist, and profess to believe, that
treaties like acts of assembly, should be repealable at pleasure.
This idea seems to be new and peculiar to this country, but new
errors, as well as new truths, often appear. These gentlemen would
do well to reflect that a treaty is only another name for a
bargain, and that it would be impossible to find a nation who
would make any bargain with us, which should be binding on them
absolutely, but on us only so long and so far as we may
think proper to be bound by it. They who make laws may, without
doubt, amend or repeal them; and it will not be disputed that they
who make treaties may alter or cancel them; but still let us not
forget that treaties are made, not by only one of the contracting
parties, but by both; and consequently, that as the consent of
both was essential to their formation at first, so must it ever
afterwards be to alter or cancel them. The proposed Constitution,
therefore, has not in the least extended the obligation of
treaties. They are just as binding, and just as far beyond the
lawful reach of legislative acts now, as they will be at any
future period, or under any form of government. ¶

However useful jealousy may be in republics, yet when
like bile in the natural, it abounds too much in the body politic,
the eyes of both become very liable to be deceived by the delusive
appearances which that malady casts on surrounding objects. From
this cause, probably, proceed the fears and apprehensions of some,
that the President and Senate may make treaties without an equal
eye to the interests of all the States. Others suspect that two
thirds will oppress the remaining third, and ask whether those
gentlemen are made sufficiently responsible for their conduct;
whether, if they act corruptly, they can be punished; and if they
make disadvantageous treaties, how are we to get rid of those
treaties? ¶

As all the States are equally represented in the
Senate, and by men the most able and the most willing to promote
the interests of their constituents, they will all have an equal
degree of influence in that body, especially while they continue
to be careful in appointing proper persons, and to insist on their
punctual attendance. In proportion as the United States assume a
national form and a national character, so will the good of the
whole be more and more an object of attention, and the government
must be a weak one indeed, if it should forget that the good of
the whole can only be promoted by advancing the good of each of
the parts or members which compose the whole. It will not be in
the power of the President and Senate to make any treaties by
which they and their families and estates will not be equally
bound and affected with the rest of the community; and, having no
private interests distinct from that of the nation, they will be
under no temptations to neglect the latter. ¶

As to corruption, the case is not supposable. He must
either have been very unfortunate in his intercourse with the
world, or possess a heart very susceptible of such impressions,
who can think it probable that the President and two thirds of the
Senate will ever be capable of such unworthy conduct. The idea is
too gross and too invidious to be entertained. But in such a case,
if it should ever happen, the treaty so obtained from us would,
like all other fraudulent contracts, be null and void by the law
of nations. ¶

With respect to their responsibility, it is difficult
to conceive how it could be increased. Every consideration that
can influence the human mind, such as honor, oaths, reputations,
conscience, the love of country, and family affections and
attachments, afford security for their fidelity. In short, as the
Constitution has taken the utmost care that they shall be men of
talents and integrity, we have reason to be persuaded that the
treaties they make will be as advantageous as, all circumstances
considered, could be made; and so far as the fear of punishment
and disgrace can operate, that motive to good behavior is amply
afforded by the article on the subject of impeachments. ¶

Publius.
[John Jay]

First published in the Friday, March 7, 1788 issue of the Independent Journal.